Guides · Trade Secret Litigation
Misappropriation and Related Claims
The core claim is misappropriation: acquiring a trade secret by improper means, or using or disclosing it without consent in breach of a duty or knowing it was improperly obtained.
· Law checked through October 20, 2026
In Short
The core claim is misappropriation: acquiring a trade secret by improper means, or using or disclosing it without consent in breach of a duty or knowing it was improperly obtained. Owners usually add contract claims (confidentiality and noncompete agreements), breach of fiduciary duty, and sometimes computer-access claims. Texas's trade secret statute displaces other tort claims based on the same misappropriation, so pleading choices matter.
Common situations.
- An employee emailed files to a personal account before resigning.
- A competitor hired the employee and is now selling a similar product.
- A former distributor used confidential pricing it received under an NDA.
Misappropriation under TUTSA and the DTSA.
Both statutes define misappropriation in the same basic way (Tex. Civ. Prac. & Rem. Code § 134A.002; 18 U.S.C. § 1839(5)). A person misappropriates a trade secret by:
- Acquisition by improper means. Acquiring it while knowing or having reason to know it was obtained by improper means.
- Use or disclosure after improper acquisition. Using or disclosing it without consent after acquiring it by improper means.
- Use or disclosure through a tainted source. Using or disclosing it while knowing or having reason to know it came through someone who used improper means.
- Use or disclosure in breach of a duty. Using or disclosing it while knowing or having reason to know it was acquired under circumstances creating a duty to keep it secret or limit its use, such as an employment or nondisclosure agreement.
- Use or disclosure of information from someone who owed a duty. Using or disclosing it while knowing or having reason to know it came from a person who owed the owner such a duty.
- Accident or mistake. Using or disclosing it, before a material change of position, while knowing it was a trade secret acquired by accident or mistake.
"Improper means" includes theft, bribery, misrepresentation, breach or inducing a breach of a duty to maintain secrecy, and espionage, including by electronic means. Independent development and reverse engineering of a lawfully obtained product are proper means.
The federal claim. The DTSA applies only if the trade secret relates to a product or service used in, or intended for use in, interstate or foreign commerce (18 U.S.C. § 1836(b)(1)). That requirement is usually easy to meet for a business that sells across state lines.
Related claims.
| Claim | Basis | Notes |
|---|---|---|
| Breach of a confidentiality agreement | Contract | Survives TUTSA displacement (§ 134A.007(b)(1)); can protect information that may not qualify as a trade secret |
| Breach of a noncompete or nonsolicitation covenant | Tex. Bus. & Com. Code §§ 15.50-15.52 | Enforceable if ancillary to an otherwise enforceable agreement and reasonable in time, area, and scope. An employer's promise to provide confidential information, once performed, can support a noncompete (Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006)), as can stock options tied to the employer's goodwill (Marsh USA Inc. v. Cook, 354 S.W.3d 764 (Tex. 2011)). Courts reform overbroad covenants rather than voiding them (§ 15.51(c)). Since Sept. 1, 2025, stricter limits apply to physicians and certain other health care practitioners (§§ 15.50, 15.501) |
| Breach of fiduciary duty | Common law | An employee may prepare to compete before leaving, but may not use the employer's confidential information or solicit its customers or employees while still employed (Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002)) |
| Tortious interference | Common law | With contracts or prospective business relations, for example against a new employer that induces breach of a noncompete |
| Computer Fraud and Abuse Act | 18 U.S.C. § 1030(g) | Narrow after Van Buren v. United States, 593 U.S. 374 (2021): a person with authorized access to a system does not violate the act by misusing information in it. Still available for access without authorization, such as using credentials after access was revoked |
| Texas Harmful Access by Computer Act | Tex. Civ. Prac. & Rem. Code ch. 143 | Civil claim for knowing and intentional violations of the Penal Code's computer-crime provisions |
What TUTSA displaces.
TUTSA displaces conflicting tort, restitutionary, and other Texas law providing civil remedies for misappropriation of a trade secret (§ 134A.007(a)). It does not affect contract remedies, other civil remedies not based on misappropriation, or criminal remedies (§ 134A.007(b)). In practice:
- Displaced. Claims that rest on the same facts as the misappropriation claim. A Texas appellate court held in 2025 that TUTSA displaced claims resting on the same facts as the misappropriation claim, including civil conspiracy, Texas Theft Liability Act claims, and breach of fiduciary duty to the extent based on misappropriation; adding an element to a claim does not avoid displacement. The same court held that claims for misuse of confidential information that does not qualify as a trade secret are not displaced (Coe v. DNOW LP, 718 S.W.3d 338 (Tex. App.–Houston [14th Dist.] 2025, pet. denied)).
- Not displaced. Claims based on independent misconduct. In 2026 the Texas Business Court held that breach of fiduciary duty claims based on misuse of company resources and solicitation, rather than on misappropriation, survived a motion to dismiss (Unimacts Global, LLC v. Ayr Energy Inc., No. 25-BC11A-0083, 2026 Tex. Bus. 31 (May 20, 2026)).
- The DTSA does not displace state law (18 U.S.C. § 1838), so DTSA and TUTSA claims can be brought together.
Criminal exposure.
Theft of trade secrets is also a crime. The Economic Espionage Act punishes theft of trade secrets to benefit a foreign government (18 U.S.C. § 1831) and theft of trade secrets related to products in interstate commerce (§ 1832). Texas law separately criminalizes theft of trade secrets (Tex. Penal Code § 31.05). A pending criminal investigation may lead a civil defendant to invoke the Fifth Amendment and may affect the timing of the civil case.
Sources.
- Tex. Civ. Prac. & Rem. Code §§ 134A.002, 134A.007; ch. 143.
- 18 U.S.C. §§ 1030(g), 1831, 1832, 1836(b)(1), 1838, 1839(5).
- Tex. Bus. & Com. Code §§ 15.50-15.52, 15.501.
- Tex. Penal Code § 31.05.
- Van Buren v. United States, 593 U.S. 374 (2021).
- Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006).
- Marsh USA Inc. v. Cook, 354 S.W.3d 764 (Tex. 2011).
- Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002).
- Coe v. DNOW LP, 718 S.W.3d 338 (Tex. App.–Houston [14th Dist.] 2025, pet. denied).
- Unimacts Global, LLC v. Ayr Energy Inc., No. 25-BC11A-0083, 2026 Tex. Bus. 31 (Tex. Bus. Ct., 11th Div., May 20, 2026).
This guide is general information, not legal advice. Law checked through October 20, 2026. See the Disclaimer.